Confirmation Report

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

John Roberts is putting on a clinic.

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He completely understands that he needs only to sit very quietly, head cocked to signal listening-ness, while senator after senator offers long discursive rambling speeches. Only when he's perfectly certain that a question has been asked does he offer a reply; usually cogent and spare. Here's a man long accustomed to answering really hard questions from extremely smart people, suddenly faced with the almost-harder task of answering obvious questions from less-smart people. He finds himself standing in a batting cage with the pitching machine set way too slow.

It's increasingly clear that Senate Democrats are giving up. They are taking a cue from the petulant Joe Biden, who telegraphs exactly who these hearings are really for when he refuses to let the nominee answer any of his questions. When Sen. Arlen Specter growls at Biden to let Roberts finish just one answer, Biden growls back: "I don't have much time." Later when Biden complains of Roberts, "But he's filibustering!" it's without any sense of irony. How dare this man use our own childish games against us?

Whereas Biden and Patrick Leahy made at least some effort to develop lines of questioning, Herb Kohl and Dianne Feinstein give up entirely. Knowing there will be no Perry Mason moment—there won't even be a Lionel Hutz moment—they dully read their questions from a script and avoid the follow-up altogether. "Oh, so you aren't opposed to environmental protection? OK. Let's move on." The hunters have become the hunted. The lion is draped across a chaise longue, picking his teeth with their arguments.

John Roberts isn't just book-smart. He's people-smart. His game plan was unfurled within seconds of his nomination: He was going to be Humble Guy. As Bruce Reed notes today, it’s sticking. He used the word "humble" three times yesterday in his very brief opening remarks. Used "modest," too. And the brilliant thing about claiming to be humble is just this: No one gets to say, "You're not humble!" It only makes Roberts look humbler. He's a tactical genius.

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The whole "humble" thing plays out in a thousand brilliant ways today. It's an elegant and simple formulation that justifies his every action and belief in a perfect humble arc:

On his earlier more incendiary writings: "I was a staff lawyer. I don't know if what I wrote was consistent with my views or not—mostly no one cared terribly much." And later, ironically-yet-humbly: "I knew a lot more at 25 than I do at 50."

On his philosophy of judicial interpretation: "I haven't had time to read Cass Sunstein's book. He writes a different one every week." He adds that his overarching theory is that he is humble. He embraces modesty. He defers to his colleagues. Mostly: "I look at cases bottom-up as opposed to top-down."

On judicial activism: "If a court strikes down an act of Congress and [the court] is wrong, that's not judicial activism. It's just being wrong … judges are aware that millions of people voted for you [senators]. Not one voted for us."

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On his opposition to environmental laws: Of course—we need to protect the environment. But not just anyone can file suit. They need to have standing. A little more modesty from the plaintiffs, if you please.

On his opposition to extending Title IX to include damages for a girl raped by her teacher: It was a question of statutory interpretation. Title IX didn't provide for such damages and he sought only to limit its remedies to existing ones.

On the hapless toad: He wasn't limiting the reach of the commerce clause. He was simply suggesting that there was another, more minimalist means of resolving the case.

On his pro bono work: When asked about helping the plaintiffs in Romer v. Evans—the Colorado gay rights case—he says he was just asked by his partners to help out. "I never turned down such a request."

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On the fact that he argued before the Supreme Court with two days' notice, then argued a second case before the D.C. Court of Appeals that afternoon: It just sort of worked out that way. When pressed to disclose whether he won these appeals: (Modestly) "The court got it right in each case."

On what he learned from his clerkships: Humility from Judge Henry Friendly and minimalism and humility (at least in opinion writing) from Chief Justice William Rehnquist.

On the role of judges: They wear black robes not only to make it clear that they are not individuals promoting particular views, but also so they can blend into the walls and fly like bats into the night sky. (OK, that last part was mine.)

On the role of courts: "Courts are passive institutions. They don't go out and find cases." Judges should enforce the Bill of Rights. They shouldn't say, "This is an injustice, I'm going to fix it."

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On something said by David Souter at his confirmation hearing: "I don't want to comment on Justice Souter. He's either going to be my colleague or one of my bosses." (Or my subordinate, but I'm too humble to mention that.)

On the fact that his writings in the '80s show him as neither modest nor humble (score that one to Dianne Feinstein) *: That was just the jokey tone in the attorney general's office.

No one seriously questions Roberts about whether all this institutional humility simply means that judges will be so busy erasing themselves, there will be no court left on his watch. Trust a lazy former law clerk: There will always be a "humble" way to decide every case—dismiss for lack of standing; dismiss for ripeness; seek the narrowest grounds. Roberts keeps defending his record of never doing the right thing in the service of this greater ethical value: doing nothing. And it keeps sounding so principled and right.

There are a handful of slips and otherwise human moments today. Roberts is clearly annoyed by Biden's ridiculous refusal to let him answer any questions. He winces visibly when Sen. Leahy says, "I just want to make sure you're not a Korematsu justice." When Feinstein questions him about his insensitivity to women's issues in the 1980s, his wife, seated directly behind him, begins to grin.

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It is an immutable rule of nature that every sadist needs a masochist, every leader needs a follower, and every addict needs an enabler. So, too, every egomaniac needs someone humble, and that's why, in the end, these hearings are so perfectly matched. Roberts wants to say little and literally fade to black. The senators want to give speeches and seize the limelight. It's a match made in heaven. It's just the watching it that's hell.

******

On the betting pool front: Hundreds of replies. And sorry, but I already have to eliminate the entries that suggested 11, 16, and 17 as the number of times Roberts would refuse to answer questions based on the fact that the issue might come before him as a justice. At my last count he's already surpassed that number with respect to Roe v. Wade alone. A lot of contestants are guessing in the 60s, based, I suspect, on Orrin Hatch's claim that Ruth Bader Ginsburg refused to answer almost 60 times. I'm guessing even that will be low, judging by today's performance. But keep your votes coming: livingcons@hotmail.com.

Correction, Sept. 14, 2005: The original version of this article misnamed Dianne Feinstein as "Barbara Feinstein." Return to the corrected sentence.